Cardiff Business School-12 June 2008

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The Gender Equality Duty: A lever for equal pay?

Bronwyn McKenna

Director of Organising and Membership

Cardiff Business School-12 June 2008

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Overview

bargaining context background to public sector equal pay litigation use of gender equality duty to secure equal pay case studies legislative context

Cardiff Business School-12 June 2008

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Bargaining context 1/2

Local Government 1997 Single status agreement-local pay and grading

reviews 2004-2007 three year pay deal-April 2007 deadline.

BUT no government funding 2008 Local Government Employers research

49% councils completed pay and grading review

25% councils in process of implementing

capitalisation in England (£0.5bn) and Wales

Cardiff Business School-12 June 2008

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Bargaining context 2/2

NHS 2004 Agenda for Change agreement developed with

expert job evaluation advice 90% of NHS staff’s pay increased largest increases-cleaners, domestics, health care

assistants i.e. predominantly female group government funding provided to meet costs Agreement piloted and centrally driven

Cardiff Business School-12 June 2008

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Public Sector equal pay litigation

1 in 5 of all ET claims = equal pay claims 2008 UNISON commenced its 40,000th case disadvantages of an individual enforcement approach

random effects

delay in hearings of multi-week cases

incidence of appeals

evidence can become matter of archaeology

underlying law not fit for purpose e.g. comparator issues

Cardiff Business School-12 June 2008

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Scope to use GED to secure equal pay 1/2

General duties directly enforceable by Judicial Review by trade unions and the Equality and Human Rights Commission

S76(1) SDA

public authority must have due regard to the need to eliminate unlawful discrimination and harassment;

and promote equality of opportunity between men and

women

Cardiff Business School-12 June 2008

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Scope to use GED to secure equal pay 2/2

Specific duties directly enforceable by EHRCs76B + s76C SDA public authorities are required to publish a gender equality scheme

showing how they intend to fulfill the general and specific duties to consider the need to have objectives that address the causes of any

difference in between the pay of men and women that are related to their sex

to collect and assess information on the effect of policies and practices on male and female staff

(Indirect requirement to carry out pay audits?) to consult stakeholders including trade unions as well as employees to assess the impact of its policies and practices on gender equality to conduct reviews of gender equality scheme

Cardiff Business School-12 June 2008

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How should unions harness the Gender Equality duties?

ensure reps are involved in the development of any Gender equality scheme from an early stage

ensure reps are formally consulted on the scheme make sure process for gathering information is robust determine criteria for equality impact assessments establish union involvement in reviews of progress on equality

scheme insist on pay audits as most effective means of addressing the

gender pay gaps scope to use GED in equal pay claims?

to obtain informationto highlight inequalitiespleadings in case

Cardiff Business School-12 June 2008

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Case study-NHS PFI contract

PFI contract for soft facilities management with information extended and value of contract increased

equality scheme in place but no

equality impact assessment; and

no equality specifications included in contract legacy commissions wrote to employer asking for equality

scheme and EIA commitment to carry out EIA at late stage route of implementation of Agenda for Change speeded up commitment to apply Agenda for Change for future contracts

Cardiff Business School-12 June 2008

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Legislative context

Equality Bill

August 2007 Discrimination Law Review proposed a single equality duty encompassing race, sex and disability. Some authorities exempted

June 2008 Announcement of Government response to consultation

expected

Cardiff Business School-12 June 2008

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The Future for the Equality DutiesThe Government commitment on Equality Bill:• “A single equality duty…will require public bodies to consider the diverse needs and requirements of their workforce………”

Trade Unions want:•A strong public sector duty across all grounds•Specific public sector obligations covering procurement•Extension of the duties to the public and private sectors